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REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA52/2013
In the matter between:
RUAN KUKARD Appellant
GKD DELKOR (PTY) LTD Respondent
Heard: 12 September 2014
Delivered: 07 October 2014
Summary: Proof of dismissal- parties entering into a settlement agreement to
re-employ employee on same terms and conditions prior to employees
resignation- employer re-employing employee on different terms- employee
refusing new terms of employment. Employee referring unfair dismissal-
employer contending the existence of an employment relationship and that no
dismissal took place. Commissioner finding dismissal procedurally unfair.
Labour Court finding that no dismissal took place and CCMA not having
jurisdiction. Arbitration award set aside- Appeal- evidence showing existence
of employment relationship and that employer re-employing employee on
different terms contrary to the settlement agreement. Commissioners decision
reasonable Compensation Kemp judgment distinguished- reviewing an order
for compensation- evaluation of the facts before the commissioner based on
fairness to both parties- evidence showing that reinstatement impractical-
commissioners compensation order correct- Labour Courts judgment set
aside- review application dismissed with costs Coram: Musi JA, Murphy and
 This is an appeal, with leave of this Court, against the judgment of the Labour
Court (Vatalides AJ) in which it reviewed and set aside an arbitration award of
the Commission for Conciliation, Mediation and Arbitration (the CCMA) and
substituted it with an award that the appellant had failed to prove a dismissal,
and consequently the CCMA lacked jurisdiction to determine the appellants
unfair dismissal dispute. The Labour Court ordered the appellant to pay the
 The factual matrix from which this appeal arises is largely common cause
between the parties. The appellant, Ruan Kukard (the appellant), was
employed by the respondent GKD Delkor (Pty) Ltd (Delkor) during May 2005
as Technical Sales Representative (Specialised Solid Weave Products). His
contract of employment included a restraint of trade inter alia preventing him
from entering into any form of consultation, contract or discussions with direct
competitors of Delkor, including those companies specifically listed in the
annexures to the contract, for a period of 12 months from the date of
 On 29 September 2008, the appellant resigned from Delkor in order to take up
a position with Larox (Pty) Ltd (Larox). Gary Whitford (Whitford), Delkors
General Manager, regarded Larox to be a competitor, and advised the
appellant that Delkor would enforce the terms of the restraint of trade
agreement should he take up the position with Larox. The appellant disputed
that Larox was a competitor of Delkor, and a flurry of correspondence was
exchanged between his attorneys (Van Gaalen Attorneys) and Delkors
attorneys (McClaren and Associates) in relation to this issue.
 On 23 October 2008, Delkors attorneys wrote a letter to the appellants
attorneys confirming that Delkor would take back the appellant, and that
Whitford and the appellant were meeting the next day to formalise the
arrangement. On the same day, Delkors attorneys wrote a further letter to the
appellants attorneys stating inter alia that:
this matter is capable of resolution on the following basis:
1. Larox SA (Pty) Limited or its associates will not employ Ruan Kukard.
2. GKD Delkor will re-employ Kukard with effect 1 November 2008.
3. Larox SA (Pty) Limited will not employ any GKD-Delkor employee who
is subject to a GKD restraint.
 On 24 October 2008, the appellants attorneys wrote a letter to Delkors
attorneys stating that:
GKD Delkor will re-employ Ruan Kukard on the same conditions, with the
same benefits he was entitled to prior to resigning, with effect 1 November
In a letter dated, 27 October 2008, Delkors attorneys confirmed the
abovementioned agreement by stating that:
We refer to your letter dated 24 October 2008.
The matter is resolved on the basis set out in your letter. We kindly request
your client to report for duty on 1 November 2008.
On Friday, 24 October 2008, Whitford met with the appellant at the Dros.
Other than that the appellant had asked Whitford to provide him with a
detailed job description, which Whitford undertook to do, the details of this
discussion are in dispute.
 The appellant reported for duty at Delkor on 3 November 2008, as 1
November fell on a Saturday. Upon reporting for duty, the appellant was
instructed to wait in the reception area whilst certain documents were being
prepared for him. The document that was handed to the appellant on that day
was a letter of appointment indicating that he would be appointed in the
position of Proposal Engineer from 30 November 2008 until 30 January 2009,
whereas prior to his resignation he was employed on a permanent basis as a
Technical Sales Representative. The appellant requested use of the laptop
and cell phone which he used prior to his resignation, but these items were
not handed to him. The appellant once again asked to be provided with a
formal job description, but it was not provided to him.
 On 4 November 2008, a discussion took place between the appellant and
Whitford, Although the details of this discussion remain in dispute between the
parties, it is common cause that Whitford raised the issue of the appellants
refusal to sign the fixed term contract for the position of Proposal Engineer
with the respondent, and instructed him to hand back the company cell phone
which was given to him the day before. Whitford also handed the appellant a
letter, of the same date, stating that:
This letter confirms that the offer of employment issued Monday 3 November
is withdrawn in its entirety.
The appellant, thereafter, left Delkors premises. Later that day his attorneys
wrote a letter, to Delkors attorneys inter alia stating as follows:
We confirm that our client Ruan Kukard did report for duty on 3 November
2008, 1 November 2008 was a Saturday. He was handed a Letter of
Appointment, valid only for three months, and confirming his appointment as
Proposal Engineer. We confirm he was not employed on the same conditions
and benefit as agreed.
Our client, Ruan Kukard approached your Gary Whitford from your clients
offices this morning about the issue that he is not employed on the same
conditions and benefits as agreed. Gary informed him that there is no
agreement and that he must go home. A letter was even handed to him that
confirms that the Letter of Appointment issued on 3 November 2008 is
withdrawn in its entirety.
We confirm that your client is in breach of the settlement agreement and
further unfairly dismissed Ruan Kukard this morning. Our client accepts your
clients repudiation of the settlement agreement and confirms therefore that
the settlement agreement is null and void. We are in the process of referring
the matter to the CCMA.
 Later that day, Delkors attorneys replied stating that:
1. Notwithstanding the settlement your client has been hell-bent on derailing
the process of his re-integration into the company.
2. As such he has been obtuse and obstructive and difficult to deal with.
3. There is no question of repudiation or dismissal.
4. The correspondence and proposed letters of appointment were put forward
for discussion purposes only.
5. You will note from the last paragraph of the proposed agreement that if
your client had any queries, he was invited to take up same with the writer.
8. There is accordingly no question that your client was dismissed and both
you and your client are invited to meet with the writer to discuss the matter.
 On 4 November 2008, the appellant referred an unfair dismissal dispute to the
CCMA. The dispute was arbitrated by the Commissioner on 17 February
2009, and on 23 February 2009 she issued the arbitration award (the award)
in which she found that the appellant was dismissed by Delkor on 4
November 2008, and that his dismissal was substantively and procedurally
unfair. The Commissioner found that the so called extension of the settlement,
dated 11 February 2009, the repeated statements that the appellant had in
fact not been dismissed, and the offers to re-employ him, including the one
made at the arbitration were of no consequence to the consideration of
proper compensation due to the appellant. The Commissioner held, in this
regard, that the relationship between the appellant and Delkor cannot be
salvaged based on: (a) the length of service of the appellant; (b) the way in
which the appellant was treated; and (c) the fact that the appellant had been
unable to secure employment. The Commissioner accordingly ordered Delkor
to pay the appellant the amount of R420 000, 00, in c